Support

A cookie is a piece of data stored by your browser or device that helps websites like this one recognize return visitors. We use cookies to give you the best experience on BNA.com. Some cookies are also necessary for the technical operation of our website. If you continue browsing, you agree to this site’s use of cookies.

Events

Bloomberg Next marketing services allow clients to elevate their brands and extend their reach through our established and trusted expertise, enhanced with engaging event production, appealing design, and compelling messaging.

D.C. Cir. Set to Hear Bahlul Case Again: What to Watch

Nov. 19 — The question
whether military tribunals have the constitutional authority to try
domestic terrorism conspiracies or whether those cases must be
prosecuted in Article III civilian courts may boil down to what
standard of review the en banc U.S. Court of Appeals for the
District of Columbia Circuit chooses to apply after it hears oral
argument Dec. 1 in Bahlul v. United
States, according to legal scholars who spoke with Bloomberg
BNA.

“I have a hard time seeing how the government wins
under de novo review and a hard time seeing how Bahlul wins under
plain-error review,” said Steve Vladeck, of the American University
Washington School of Law, Washington.

International War Crimes

Ali Hamza Ahmad Suliman al Bahlul was convicted in
2008 of conspiracy to commit war crimes. Prosecutors alleged, among
other things, that Bahlul served as Osama bin Laden's media
secretary and produced propaganda and recruiting videos for al
Qaeda.

In an en banc decision in 2014, the D.C. Circuit
vacated Bahlul's material support and solicitation convictions but
rejected Bahlul's ex post facto challenge to his conspiracy
conviction under a plain-error standard of review, ruling that he
forfeited those arguments by failing to raise them in the court
below (95 CrL 514, 7/23/14).

On remand, a divided three-judge panel June 12
vacated the conspiracy conviction, ruling that the military
tribunal that convicted him didn't have jurisdiction to hear what
amounts to a purely domestic offense, as opposed to an
international war crime, and further that the ex post facto
argument wasn't forfeited (97 CrL 291, 6/17/15).

On Sept. 25, the full court vacated the panel
opinion, saying it not only would rehear all the issues raised in
the government petition but that it also wanted the parties to
address the appropriate standard of review.

Hard to Predict

In an interview with Bloomberg BNA, Jennifer Daskal,
an assistant law professor at American University, suggested that
questions at oral argument dealing with standard of review will be
critical.

“The standard of review is definitely one of the
biggest issues because it is potentially outcome determinative,”
Daskal said.

There is some chance that the full court will say it
is going to apply a plain-error standard because Bahlul didn't
raise the key challenge before the military commission, and that's
a tough standard to meet, she said.

Daskal told Bloomberg BNA that she also expects
questions from the en banc court on the substantive issue of
“whether and to what extent military commissions are limited to
trying international law offenses.” Bahlul is arguing that domestic
conspiracy charges are beyond the jurisdictional reach of these
commissions because the charges didn't involve international war
crimes.

“It's hard for me to see that there are enough votes
on the full court to say that the conspiracy charges can go
forward, but it's impossible to predict,” Daskal said.

Clearly there are judges on the court who are
dissatisfied with the panel opinion, she continued. “So if I had to
guess, I could see them trying to narrow the panel holding
somewhat,” she said.

Daskal is a former counsel to the assistant attorney
general for national security at the Justice Department.

Judicial Scorecard

“One of the biggest things to watch in the oral
argument will be not only how much time the court spends on the
standard of review issue, but also whether there are any surprises
insofar as which judges seem sympathetic to the government's
position,” Vladeck said in an interview with Bloomberg BNA.

He added that court prognosticators would also do
well to zero in on any questions asked by “the newer judges who
weren't on the en banc court the last time around, like [Patricia
A.] Millett, [Robert L.] Wilkins and [Cornelia T.L.]
Pillard.”

In her dissent to the June panel decision, Judge
Karen LeCraft Henderson assailed the majority's decision to grant
de novo review and warned that the decision would hamstring the
government's ability to bring terrorists to justice, Vladeck
noted.

The two judges who were in the majority on the panel
decision, Judges Judith W. Rogers and David S. Tatel, sided with
Bahlul on the standard of review.

‘Article III Elephant.'

If a majority of the panel says Bahlul's Article III
challenge should be reviewed using a “highly deferential standard,”
that would allow the court “to avoid the Article III elephant in
the room the same way it avoided the ex post facto problem in its
July 2014 en banc decision,” Vladeck wrote in the online forum Just
Security, which focuses on U.S. national security law and
policy.

Vladeck filed an amicus curiae brief on behalf of
the National Institute of Military Justice in support of
Bahlul.

Garland, Rogers and Tatel were appointed by
President Bill Clinton. Millet, Wilkins and Pillard were appointed
by President Barack Obama. Brown, Griffith and Kavanaugh were
appointed by President George W. Bush and Henderson was appointed
by President George H.W. Bush.

Issue SCOTUS-Bound?

Regardless of what the D.C. Circuit ultimately
decides, Vladeck predicts the issue may eventually land in the U.S.
Supreme Court.

If the court reaches and decides the main issue de
novo, Vladeck said, “it will certainly get the Supreme Court's
attention.”

Of course, if the circuit court upholds Bahlul's
convictions under the plain-error standard, the case will have
“zero precedential value” and it still won't be clear whether the
line between war crimes and domestic offenses is a “critical line”
or a “blurry line,” he said.

In any event, he said, “It wouldn't shock me, given
the size and composition of the court, if we got some kind of
fractured opinion where different judges create different
alignments.”

Michel David Paradis, of the Office of the Chief
Defense Counsel, Washington, will be arguing for Bahlul. Ian Heath
Gershengorn, of the DOJ, Washington, will argue for the government.
Each side has been allotted 30 minutes.

To contact the reporter on this story: Lance J.
Rogers in Washington at lrogers@bna.com

To contact the editor responsible for this story: C.
Reilly Larson at rlarson@bna.com

All Bloomberg BNA treatises are available on standing order, which ensures you will always receive the most current edition of the book or supplement of the title you have ordered from Bloomberg BNA’s book division. As soon as a new supplement or edition is published (usually annually) for a title you’ve previously purchased and requested to be placed on standing order, we’ll ship it to you to review for 30 days without any obligation. During this period, you can either (a) honor the invoice and receive a 5% discount (in addition to any other discounts you may qualify for) off the then-current price of the update, plus shipping and handling or (b) return the book(s), in which case, your invoice will be cancelled upon receipt of the book(s). Call us for a prepaid UPS label for your return. It’s as simple and easy as that. Most importantly, standing orders mean you will never have to worry about the timeliness of the information you’re relying on. And, you may discontinue standing orders at any time by contacting us at 1.800.960.1220 or by sending an email to books@bna.com.

Put me on standing order at a 5% discount off list price of all future updates, in addition to any other discounts I may quality for. (Returnable within 30 days.)

Notify me when updates are available (No standing order will be created).

This Bloomberg BNA report is available on standing order, which ensures you will all receive the latest edition. This report is updated annually and we will send you the latest edition once it has been published. By signing up for standing order you will never have to worry about the timeliness of the information you need. And, you may discontinue standing orders at any time by contacting us at 1.800.372.1033, option 5, or by sending us an email to research@bna.com.

Put me on standing order

Notify me when new releases are available (no standing order will be created)